department of consumer affairs for the ......tc 280412 daniel vasquez 7318 lenox ave riverside, ca...

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XAVIER BECERRA Attorney General of CaliforniaARMANDO ZAMBRANO Supervising Deputy Attorney GeneralKEVIN J. SCHETTIG Deputy Attorney GeneralState Bar No. 234240 300 So. Spring Street, Suite 1702Los Angeles, CA 90013

Telephone: (213) 269-6272 Facsimile: (916) 731-2126

Attorneys for Complainant

BEFORE THE DEPARTMENT OF CONSUMER AFFAIRS

FOR THE BUREAU OF AUTOMOTIVE REPAIR STATE OF CALIFORNIA

In the Matter of the Accusation Against: Case No. 79/19-8005

OCTAVIO GONZALEZ, dba EL NENE TEST ONLY 8171 Sierra Ave. Unit R Fontana, CA 92335

ACCUSATION

Mailing Address:627 South Olive Ave Unit A Rialto, CA 92376

Automotive Repair Dealer Registration No.ARD 280412 Smog Check, Test Only, Station License No. TC 280412

DANIEL VASQUEZ7318 Lenox Ave Riverside, CA 92504

Mailing Address:5946 Mountain View Ave. Riverside, CA 92504

Smog Check Inspector License No. EO636877,

and

1 (OCTAVIO GONZALEZ, dba EL NENE TEST ONLY, DANIEL VASQUEZ, and JESSIE GALVAN)

ACCUSATION

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JESSIE GALVAN 461 W. 3rd Street Rialto, CA 92376

Smog Check Inspector License No. EO641623

Respondents.

PARTIES

1. Patrick Dorais (“Complainant”) brings this Accusation solely in his official capacity

as the Chief of the Bureau of Automotive Repair, Department of Consumer Affairs.

2. On or about June 3, 2015, the Bureau of Automotive Repair (“Bureau”) issued

Automotive Repair Dealer Registration Number ARD 280412 to Octavio Gonzalez, dba El Nene

Test Only (“Respondent Gonzalez”). The Automotive Repair Dealer Registration and will expire

on June 30, 2020, unless renewed.

3. On or about June 18, 2015, the Bureau issued Smog Check, Test Only, Station

License Number TC 280412 to Respondent Gonzalez. The Smog Check, Test Only, Station

License was in full force and effect at all times relevant to the charges brought herein and will

expire on June 30, 2020, unless renewed. On or about September 23, 2015, the Station was

certified as a STAR station.

4. On or about June 13, 2013, the Bureau issued Smog Check Inspector License Number

EO 635621 to Respondent Gonzalez. The Smog Check Inspector License was in full force and

effect at all times relevant to the charges brought herein and will expire on January 31, 2021,

unless renewed.

5. On or about May 12, 2014, the Bureau issued Smog Check Inspector License Number

EO 636877 to Daniel Vasquez (“Respondent Vasquez”). The Smog Check Inspector License was

in full force and effect at all times relevant to the charges brought herein and will expire on

November 30, 2021, unless renewed.

6. On or about January 2, 2019, the Bureau issued Smog Check Inspector License

Number EO 641623 to Jessie Galvan (“Respondent Galvan”). The Smog Check Inspector 2

(OCTAVIO GONZALEZ, dba EL NENE TEST ONLY, DANIEL VASQUEZ, and JESSIE GALVAN) ACCUSATION

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License was in full force and effect at all times relevant to the charges brought herein and will

expire on August 31, 2020, unless renewed.

JURISDICTION

7. This Accusation is brought before the Director of the Department of Consumer

Affairs (“Director”) for the Bureau of Automotive Repair, under the authority of the following

laws.

8. Business and Professions Code section 9884.7 provides that the Director may revoke

an automotive repair dealer registration.

9. Business and Professions Code section 9884.13 provides, in pertinent part, that the

expiration of a valid registration shall not deprive the Director of jurisdiction to proceed with a

disciplinary proceeding against an automotive repair dealer or to render a decision temporarily or

permanently invalidating (suspending or revoking) a registration.

10. Health and Safety Code section 44002 provides, in pertinent part, that the Director

has all the powers and authority granted under the Automotive Repair Act for enforcing the

Motor Vehicle Inspection Program.

11. Health and Safety Code section 44072.6 provides, in pertinent part, that the expiration

or suspension of a license by operation of law, or by order or decision of the Director, or a court

of law, or the voluntary surrender of the license shall not deprive the Director of jurisdiction to

proceed with disciplinary action.

12. Section 118, subdivision (b), of the Code provides that suspension, expiration,

surrender, or cancellation of a license shall not deprive the Director of jurisdiction to proceed

with a disciplinary action during the period within which the license may be renewed, restored,

reissued or reinstated.

STATUTORY PROVISIONS

13. Section 9884.7 of the Code states in pertinent part:

“(a) The director, where the automotive repair dealer cannot show there was a bona fide

error, may deny, suspend, revoke, or place on probation the registration of an automotive repair

dealer for any of the following acts or omissions related to the conduct of the business of the 3


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automotive repair dealer, which are done by the automotive repair dealer or any automotive

technician, employee, partner, officer, or member of the automotive repair dealer.

(1) Making or authorizing in any manner or by any means whatever any statement written

or oral which is untrue or misleading, and which is known, or which by the exercise of reasonable

care should be known, to be untrue or misleading.

…

(4) Any other conduct that constitutes fraud.

…

(6) Failure in any material respect to comply with the provisions of this chapter or

regulations adopted pursuant to it.”

14. Section 9889.22 states:

“The willful making of any false statement or entry with regard to a material matter in any

oath, affidavit, certificate of compliance or noncompliance, or application form which is required

by this chapter or Chapter 5 (commencing with Section 44000) of Part 5 of Division 26 of the

Health and Safety Code constitutes perjury and is punishable as provided in the Penal Code.”

15. Section 44012 of the Health and Safety Code states:

“The test at the smog check stations shall be performed in accordance with procedures

prescribed by the department and may require loaded mode dynamometer testing in enhanced

areas, two-speed idle testing, testing utilizing a vehicle’s onboard diagnostic system, or other

appropriate test procedures as determined by the department in consultation with the state board.

The department shall implement testing using onboard diagnostic systems, in lieu of loaded mode

dynamometer or two-speed idle testing, on model year 2000 and newer vehicles only, beginning

no earlier than January 1, 2013. However, the department, in consultation with the state board,

may prescribe alternative test procedures that include loaded mode dynamometer or two-speed

idle testing for vehicles with onboard diagnostic systems that the department and the state board

determine exhibit operational problems. The department shall ensure, as appropriate to the test

method, the following:

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(a) Emission control systems required by state and federal law are reducing excess

emissions in accordance with the standards adopted pursuant to subdivisions (a) and (c) of

Section 44013.

(b) Motor vehicles are preconditioned to ensure representative and stabilized operation of

the vehicle's emission control system.

(c) For other than diesel-powered vehicles, the vehicle's exhaust emissions of

hydrocarbons, carbon monoxide, carbon dioxide, and oxides of nitrogen in an idle mode or loaded

mode are tested in accordance with procedures prescribed by the department. In determining how

loaded mode and evaporative emissions testing shall be conducted, the department shall ensure

that the emission reduction targets for the enhanced program are met.

(d) For other than diesel-powered vehicles, the vehicle's fuel evaporative system and

crankcase ventilation system are tested to reduce any nonexhaust sources of volatile organic

compound emissions, in accordance with procedures prescribed by the department.

(e) For diesel-powered vehicles, a visual inspection is made of emission control devices and

the vehicle's exhaust emissions are tested in accordance with procedures prescribed by the

department, that may include, but are not limited to, onboard diagnostic testing. The test may

include testing of emissions of any or all of the pollutants specified in subdivision (c) and, upon

the adoption of applicable standards, measurement of emissions of smoke or particulates, or both.

(f) A visual or functional check is made of emission control devices specified by the

department, including the catalytic converter in those instances in which the department

determines it to be necessary to meet the findings of Section 44001. The visual or functional

check shall be performed in accordance with procedures prescribed by the department.

(g) A determination as to whether the motor vehicle complies with the emission standards

for that vehicle's class and model-year as prescribed by the department.

(h) An analysis of pass and fail rates of vehicles subject to an onboard diagnostic test and a

tailpipe test to assess whether any vehicles passing their onboard diagnostic test have, or would

have, failed a tailpipe test, and whether any vehicles failing their onboard diagnostic test have or

would have passed a tailpipe test. 5


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(i) The test procedures may authorize smog check stations to refuse the testing of a vehicle

that would be unsafe to test, or that cannot physically be inspected, as specified by the department

by regulation. The refusal to test a vehicle for those reasons shall not excuse or exempt the

vehicle from compliance with all applicable requirements of this chapter.”

16. Section 44015 of the Health and Safety Code, subdivision (b), states:

(b) If a vehicle meets the requirements of Section 44012, a smog check station licensed to

issue certificates shall issue a certificate of compliance or a certificate of noncompliance.


“No person shall perform, for compensation, tests or repairs of emission control devices or

systems of motor vehicles required by this chapter unless the person performing the test or repair

is a qualified smog check technician and the test or repair is performed at a licensed smog check

station. Qualified technicians shall perform tests of emission control devices and systems in

accordance with Section 44012.”


“The willful making of any false statement or entry with regard to a material matter in any

oath, affidavit, certificate of compliance or noncompliance, or application form which is required

by this chapter or Chapter 20.3 (commencing with Section 9880) of Division 3 of the Business

and Professions Code, constitutes perjury and is punishable as provided in the Penal Code.”

19. Section 44072.2 of the Health and Safety code states, in pertinent part:

“The director may suspend, revoke, or take other disciplinary action against a license as

provided in this article if the licensee, or any partner, officer, or director thereof, does any of the

following:

(a) Violates any section of this chapter and the regulations adopted pursuant to it, which

related to the licensed activities.

…

(c) Violates any of the regulations adopted by the director pursuant to this chapter.

(d) Commits any act involving dishonesty, fraud, or deceit whereby another is injured.

… 6


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(h) Violates or attempts to violate the provisions of this chapter relating to the particular

activity for which he or she is licensed.”

20. Section 44072.8 of the Health and Safety Code states:

“When a license has been revoked or suspended following a hearing under this article, any

additional license issued under this chapter in the name of the licensee may be likewise revoked

or suspended by the director.”

REGULATORY PROVISIONS

21. California Code of Regulations, title 16, section 3340.30, subdivision (a), states:

“A licensed smog check inspector and/or repair technician shall comply with the following

requirements at all times while licensed:

(a) Inspect, test and repair vehicles, as applicable, in accordance with section 44012 of the

Health and Safety Code, section 44035 of the Health and Safety Code, and section 3340.42 of this

article.

…

22. California Code of Regulations, title 16, section 3340.35, subdivision (c), states:

“(c) A licensed station shall issue a certificate of compliance or noncompliance to the

owner or operator of any vehicle that has been inspected in accordance with the procedures

specified in section 3340.42 of this article and has all the required emission control equipment

and devices installed and functioning correctly. The following conditions shall apply:

(1) Customers shall be charged the same price for certificates as that paid by the

licensed station; and

(2) Sales tax shall not be assessed on the price of certificates.”

23. California Code of Regulations, title 16, section 3340.41, subdivision (c), states:

“(c) No person shall enter into the emissions inspection system any vehicle identification

information or emission control system identification data for any vehicle other than the one

being tested. Nor shall any person knowingly enter into the emissions inspection system any false

information about the vehicle being tested.”

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24. California Code of Regulations, title 16, section 3340.45, states:

“(a) All Smog Check inspections shall be performed in accordance with requirements and

procedures prescribed in the following:

(1) Smog Check Inspection Procedures Manual, dated August 2009, which is hereby

incorporated by reference. This manual shall be in effect until subparagraph (2) is implemented.

(2) Smog Check Manual, dated 2013, which is hereby incorporated by reference. This

manual shall become effective on or after January 1, 2013.”

25. California Code of Regulations, title 16, section 3373, states:

“No automotive repair dealer or individual in charge shall, in filling out an estimate,

invoice, or work order, or record required to be maintained by section 3340.15(e) of this chapter,

withhold therefrom or insert therein any statement or information which will cause any such

document to be false or misleading, or where the tendency or effect thereby would be to mislead

or deceive customers, prospective customers, or the public.”

COST RECOVERY

26. Section 125.3 of the Code provides, in pertinent part, that the Board may request the

administrative law judge to direct a licentiate found to have committed a violation or violations of

the licensing act to pay a sum not to exceed the reasonable costs of the investigation and

enforcement of the case, with failure of the licentiate to comply subjecting the license to not being

renewed or reinstated. If a case settles, recovery of investigation and enforcement costs may be

included in a stipulated settlement.

FACTUAL ALLEGATIONS

27. Based on a review of confidential Smog Check data, the Bureau initiated an

investigation of the Smog Check activities of El Nene Test Only. A Bureau representative

conducted a detailed review of second-by-second emissions test data for Smog Check inspections

performed at El Nene Test Only. The review showed a pattern of gas readings consistent with

“clean gassing.”1

1 “Clean gassing” is a method by which a surrogate gas is introduced into the Emission Inspection System (“EIS”) so that the EIS will measure the surrogate gas, or a mixture of the


ACCUSATION

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Smog Check Program Background

28. California’s Smog Check Program requires the owners of most motor vehicles in the

Enhanced and Basic areas of the State subject their vehicles to and pass a Smog Check inspection

and receive a Certificate of Compliance every two years when renewing their registration and

also when the vehicle’s title is transferred. These inspections are performed by Smog Check

inspectors at Smog Check Stations, both of which are licensed by the Bureau. The Smog Check

Program is designed and intended to reduce air pollution by identifying and requiring the repair of

polluting vehicles.

29. The Smog Check inspection in certain Enhanced areas of the State is an Acceleration

Simulation Mode (“ASM”) test performed using an Emission Inspection System (“EIS”), also

known as BAR 97. This is a computer-based five-gas analyzer that measures hydrocarbons,

carbon monoxide, oxides of nitrogen, carbon dioxide, and oxygen. The first part of the test is a

loaded mode test of the vehicle’s tailpipe emissions on a dynamometer. This puts the vehicle’s

drive wheels on rollers and the vehicle is driven at speeds of fifteen and twenty-five miles per

hour to simulate driving conditions while the emissions are sampled by the EIS.

30. In Basic areas, or depending on a vehicle’s configuration (all-wheel drive, traction

control issue), a similar test called a Two Speed Idle (TSI) test is performed, but instead of

applying a load to the vehicle’s drive wheels with a dynamometer, the EIS measures the

emissions of hydrocarbons, carbon monoxide, carbon dioxide, and oxygen at idle as well as 2,500

revolutions per minute (“RPM”).

31. The inspector also performs visual and functional tests on the vehicle as outlined in

the Smog Check Manual. The visual inspection of the emission control components verifies the

required emission control devices are present and properly connected. Functional tests are also

performed which, depending on the vehicle, may include checking the ignition timing,

malfunction indicator light (“MIL”), Exhaust Gas Recirculation (“EGR”) system, a low pressure

test of the evaporative emissions controls (“LPFET”), a visible smoke test, and a pressure test of

surrogate gas and exhaust emissions, and issue a passing result based on those readings ratherthan the actual vehicle emissions.


ACCUSATION

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the gas cap.

32. An On-Board Diagnostics (“OBDII”) functional test is also performed on most 1996

to 1999 model year vehicles. The inspector is required to connect a test cable from the EIS to the

Diagnostic Link Connector (“DLC”) which is located in the vehicle’s passenger compartment.

Through the DLC, the EIS retrieves information from the vehicle’s on-board computer about its

ability to communicate, the status of the I/M readiness monitors and the MIL light command, as

well as diagnostic trouble codes (“DTC”). The I/M readiness monitors tell whether the OBDII

system has run a sufficient number of self-tests on the vehicle’s emission and engine control

systems. A failure of one or more of the OBDII functional criteria, depending on model year,

will result in the vehicle failing its Smog Check Inspection. In addition to reporting the outcome

of the OBDII functional test, the Smog Check inspection results also show DTCs if there are any

in the vehicle’s on-board computer memory.

33. The inspector enters the results of the visual and functional inspections into the EIS.

The EIS unit makes the determination whether the vehicle passes the inspection based on the

results of the tailpipe, visual and functional tests.

34. The EIS is connected by telephone modem to the Bureau’s Vehicle Information

Database (“VID”), which is maintained by a state contractor. If the vehicle passes the visual,

functional and tailpipe tests, it passes the overall inspection and a Certificate of Compliance is

issued and transmitted electronically to the VID. Additionally, all data gathered during a Smog

Check inspection, regardless of the type of inspection, is transmitted to and retained in the VID.

35. Beginning on March 9, 2015, California’s Smog Check Program was updated to keep

pace with ever advancing technology. The program update requires the use of an On-Board

Diagnostic Inspection System (“BAR-OIS”). The BAR-OIS is the Smog Check equipment

required in all areas of the State when inspecting most model-year 2000 and newer gasoline and

hybrid vehicles and 1998 and newer diesel vehicles subject to the program. The system consists

of a certified Data Acquisition Device (“DAD”), computer, bar code scanner, and printer. The

DAD is an On-Board Diagnostic (“OBD”) scan tool that, when requested by the California BAR-

OIS software, retrieves OBD data from the vehicle. All OBD data that the vehicle indicates it 10


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supports is requested by the California BAR-OIS software and will be retrieved. Sensitive data,

such as vehicle location (“GPS”) and accident-related information (air bag deployment), is not

retrieved. The DAD connects between the BAR-OIS computer and the vehicle’s DLC. The

DAD is the only BAR-certified component of the BAR-OIS. The California BAR-OIS software

requires a continuous internet connection when performing a Smog Check inspection. The BAR-

OIS uses the California BAR-OIS software to communicate with the CID through the internet

connection. The bar code scanner is used to input inspector information, the vehicle

identification number ("VIN"), and Department of Motor Vehicles (“DMV”) renewal

information. The printer provides a Vehicle Inspection Report (“VIR”) containing inspection

results for motorists and a Smog Check Certificate of Compliance number for passing vehicles.

36. As with the EIS, inspectors also perform a visual and functional test on the vehicle.

The visual inspection of the emission control components verifies the required emission control

devices are present and properly connected, and a functional test is performed of the MIL. The

BAR-OIS software makes the determination whether the vehicle passes the inspection based on

the results of the OBD, visual and functional tests.

37. The EIS or BAR-OIS, depending on the test type, prints a VIR, which is a physical

record of the test results and shows the Certificate of Compliance number that was issued if the

vehicle passed the Smog Check inspection. The Smog Check inspector must sign the VIR to

indicate that the inspection was performed within Bureau guidelines. Licensed Smog Check

inspectors are the only persons authorized by the Bureau to perform official inspections. They

are issued a license and a personal access code which are used to gain access to the EIS and used

to set up a username and password within the BAR-OIS to perform Smog Check inspections.

Unauthorized use of another inspector’s license, access code, or username and password is

prohibited.

38. The VID contains registration data from DMV plus emission standards, vehicle Smog

Check inspections, smog check stations and inspectors, and Certificates of Compliance. The VID

has an internal clock that is set to Pacific Standard Time and records the time and date for each

inspection. Each Certificate of Compliance has a unique control number so that it can be tracked 11


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to determine which Smog Check Station purchased the Certificate of Compliance and to which

vehicle it was issued. The VID receives the Smog Check results immediately following the

inspection. The Bureau can access the VID to view test data on Smog Check inspections

performed at any Smog Check Station, or search for, retrieve, and print a test record for a

particular vehicle which has been tested. If a vehicle passes the Smog Inspection, the vehicle

information and test results are electronically transmitted to DMV.

Bureau Investigation of El Nene Smog Check Test Only

39. The Bureau’s review of the Smog Check activities at El Nene Test Only confirmed

fourteen (14) Smog Check Certificates of Compliance were fraudulently issued using the clean

gassing method, as follows:

a. Clean Gas Vehicle No. 1

BAR 97 Test Data from the VID indicates that on July 5, 2017, a 1996 GMC C1500 Sierra,

VIN 1GTEC19M7TE535486, California license number 5J59657, was tested and smog certificate

number ZX010692C was issued under licensed Smog Check Technician, license number

EO636877, issued to Respondent Vasquez. The Bureau’s review included an analysis of the

second-by-second pollutant concentrations measured during the exhaust gas measurement portion

of the Smog Check inspection.

The Bureau’s analysis of the second-by-second data from the subject test identified two or

more sharp, simultaneous drops and at least one sharp, simultaneous rise in the concentrations of

nitrogen oxides, carbon monoxide, and/or hydrocarbons. In particular, the Bureau investigator

noted that all three pollutants began to drop at or about second 53, which was during a period of

steady state vehicle speed and began to rise toward prior levels at or about second 71. A second

drop occurred at or about second 106. This pattern is highly irregular and unexpected in a normal

Smog Check.

b. Clean Gas Vehicle No. 2

BAR 97 Test Data from the VID indicates that on August 2, 2017, a 1983 Chevrolet S10

Pickup 2WD, VIN 1GCBS14BXD8165260, California license number 3B26259, was tested and

smog certificate number QI230498C was issued under licensed Smog Check Technician, license 12


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number EO636877, issued to Respondent Vasquez. The Bureau’s review included an analysis of

the second-by-second pollutant concentrations measured during the exhaust gas measurement

portion of the Smog Check inspection.







Smog Check.

c. Clean Gas Vehicle No. 3

BAR 97 Test Data from the VID indicates that on August 22, 2017, a 1999 Toyota Corolla,

VIN 1NXBR12E3XZ301261, California license number 4HHF615, was tested and smog

certificate number HD156070C was issued under licensed Smog Check Technician, license










Smog Check.

d. Clean Gas Vehicle No. 4

BAR 97 Test Data from the VID indicates that on August 24, 2017, a 1990 Honda Accord,

VIN 1HGCB7262LA059990, California license number 6GLT215, was tested and smog

certificate number HD156073C was issued under licensed Smog Check Technician, license 13


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Smog Check.

e. Clean Gas Vehicle No. 5

BAR 97 Test Data from the VID indicates that on August 26, 2017, a 1989 Ford E150

Econoline, VIN 1FDEE14H6KHB82400, California license number 4DUU532, was tested and

smog certificate number HD156074C was issued under licensed Smog Check Technician, license










Smog Check.

f. Clean Gas Vehicle No. 6

BAR 97 Test Data from the VID indicates that on August 29, 2017, a 1993 BMW 3-Series,

VIN WBACB431XPFL10566, California license number 3FDJ405, was tested and smog

certificate number HD156077C was issued under licensed Smog Check Technician, license 14


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steady state vehicle speed and began to rise toward prior levels at or about second 56. This

pattern is highly irregular and unexpected in a normal Smog Check.

g. Clean Gas Vehicle No. 7

BAR 97 Test Data from the VID indicates that on September 23, 2017, a 1992 Ford F150

Reg Cab, VIN 1FTDF15N1NLA90842, California license number 94199V1, was tested and

smog certificate number HF699354C was issued under licensed Smog Check Technician, license










Smog Check.

h. Clean Gas Vehicle No. 8

BAR 97 Test Data from the VID indicates that on November 16, 2017, a 1998 Nissan

Frontier, VIN 1N6DD26S1WC320572, California license number 11758D2, was tested and smog

certificate number HH680085C was issued under licensed Smog Check Technician, license

number EO636877, issued to Respondent Vasquez. The Bureau’s review included an analysis of 15


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Smog Check.

i. Clean Gas Vehicle No. 9

BAR 97 Test Data from the VID indicates that on December 16, 2017, a 1989 Nissan

Pickup, VIN 1N6ND11S7KC302206, California license number 8T16407, was tested and smog

certificate number HJ862562C was issued under licensed Smog Check Technician, license










Smog Check.

j. Clean Gas Vehicle No. 10

BAR 97 Test Data from the VID indicates that on January 17, 2018, a 1997 GMC Safari,

VIN 1GKDM19W4VB545279, California license number 6FQE148, was tested and smog

certificate number HJ862591C was issued under licensed Smog Check Technician, license



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Smog Check.

k. Clean Gas Vehicle No. 11

BAR 97 Test Data from the VID indicates that on April 2, 2018, a 1997 Nissan Pathfinder,

VIN JN8AR05S3VW148186, California license number 7WJN913, was tested and smog

certificate number HP477995C was issued under licensed Smog Check Technician, license










Smog Check.

l. Clean Gas Vehicle No. 12

BAR 97 Test Data from the VID indicates that on December 1, 2018, a 1998 Nissan Sentra,

VIN 1N4AB41D8WC701616, California license number 3XHG922, was tested and smog

certificate number HX406289C was issued under licensed Smog Check Technician, license



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Smog Check.

m. Clean Gas Vehicle No. 13

BAR 97 Test Data from the VID indicates that on December 11, 2018, a 1999 Chevrolet

K1500 Suburban, VIN 3GNFK16R6XG164074, California license number 7WLC258, was tested

and smog certificate number HX406300C was issued under licensed Smog Check Technician,

license number EO636877, issued to Respondent Vasquez. The Bureau’s review included an

analysis of the second-by-second pollutant concentrations measured during the exhaust gas

measurement portion of the Smog Check inspection.







Smog Check.

n. Clean Gas Vehicle No. 14

BAR 97 Test Data from the VID indicates that on April 22, 2019, a 1996 GEO Prizm, VIN

1Y1SK5268TZ027220, California license number 7TVH513, was tested and smog certificate

number QQ532640C was issued under licensed Smog Check Technician, license number

EO641623, issued to Respondent Galvan. The Bureau’s review included an analysis of the 18


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second-by-second pollutant concentrations measured during the exhaust gas measurement portion

of the Smog Check inspection.







Smog Check.

40. The Bureau’s analysis determined that there is no plausible explanation other than

clean gassing that can explain the highly irregular gas profiles of the fifteen subject passing Smog

Check tests by Respondents Vasquez and Galvan at El Nene Test Only.

FIRST CAUSE FOR DISCIPLINE

(Untrue or Misleading Statements)

41. Complainant re-alleges and incorporates by reference the allegations set forth in

paragraphs 27 through 40.

42. Respondent Gonzalez’s Automotive Repair Dealer Registration is subject to

disciplinary action under section 9884.7, subdivision (a)(1) in conjunction with section 9889.22,

in that Respondent Gonzalez made or authorized statements which Respondent Gonzalez knew or

in the exercise of reasonable care should have known to be untrue or misleading.

43. Respondent Gonzalez certified that the vehicles at issue above had passed inspection

and were in compliance with all applicable laws and regulations, when in fact and in truth

Respondent Gonzalez unlawfully used the clean gassing method to issue smog certificates of

compliance.

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SECOND CAUSE FOR DISCIPLINE

(Dishonesty, Fraud or Deceit)




disciplinary action under section 9884.7, subdivision (a)(4), in that Respondent Gonzalez

committed dishonest, fraudulent, or deceitful acts whereby another was injured by issuing a smog

certificate of compliance for the vehicles at issue without performing bona fide inspections of the

emission control devices and systems on the vehicles, thereby depriving the People of the State of

California of the protection afforded by the Motor Vehicle Inspection Program.

THIRD CAUSE FOR DISCIPLINE

(Material Violation of the Automotive Repair Act)




disciplinary action under section 9884.7, subdivision (a)(6), in that it failed in a “material respect

to comply with the provisions of this chapter or the regulations adopted pursuant to it” when it

issued smog certificates of compliance for the vehicles at issue without performing bona fide

inspections of the emission control devices and systems on the vehicles, thereby depriving the

People of the State of California of the protection afforded by the Motor Vehicle Inspection

Program.

FOURTH CAUSE FOR DISCIPLINE

(Violation of the Motor Vehicle Inspection Program)



49. Respondent Gonzalez’s Smog Check, Test Only, Station License is subject to

discipline under Health and Safety Code section 44072.2, subdivision (a), in that Respondent

Gonzalez failed to comply with the following sections of the Health and Safety Code: 20


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a. Section 44012: Respondent Gonzalez failed to perform the tests of the emission

control systems and devices on the vehicles at issue in accordance with the procedures prescribed

by the Department.

b. Section 44015, subdivision (b): Respondent Gonzalez issued smog certificates

of compliance for the vehicles at issue without properly testing and inspecting them to determine

if they were in compliance with Health and Safety Code section 44012.

c. Section 44059: Respondent Gonzalez willfully made false entries for smog

certificates of compliance for the vehicles at issue by certifying that those vehicles had been

inspected as required when, in fact, they had not.

FIFTH CAUSE FOR DISCIPLINE

(Fraud)



51. Respondent Gonzalez’s Automotive Repair Dealer Registration and Smog Check,

Test Only, Station License are subject to disciplinary action under Health and Safety Code section

44072.2, subdivision (d), in that Respondent Gonzalez committed acts involving dishonesty,

fraud and deceit when El Nene Test Only issued smog certificates of compliance for the vehicles

at issue without performing bona fide inspections of the emission control devices and systems on

the vehicles.

SIXTH CAUSE FOR DISCIPLINE

(Violations of Regulations Pursuant to the Motor Vehicle Inspection Program)



53. Respondent Gonzalez’s Smog Check, Test Only, Station License is subject to

disciplinary action under Health and Safety Code section 44072.2, subdivision (c), in that

Respondent Gonzalez failed to comply with the following sections of Title 16, California Code of

Regulations:

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a. Section 3340.35, subdivision (c): Respondent Gonzalez failed to inspect and

test the vehicles at issue in accordance with the procedures specified in section 3340.42 of the

Regulations and failed to ensure that the vehicles had all the required emission control equipment

and devices installed and functioning correctly.

b. Section 3340.42: Respondent Gonzalez failed to conduct the required smog

tests and inspections on the vehicles at issue in accordance with the Bureau’s specifications.

c. Section 3340.45: Respondent Gonzalez failed to perform smog check

inspections on the vehicles at issue as prescribed in the operative Smog Check Manual.

d. Section 3373: Respondent Gonzalez issued false and misleading records when

El Nene Test Only issued smog certificates of compliance for the vehicles at issue without

performing bona fide inspections of the emission control devices and systems on the vehicles,

thereby depriving the People of the State of California of the protection afforded by the Motor

Vehicle Inspection Program.

SEVENTH CAUSE FOR DISCIPLINE

(Untrue or Misleading Statements)



55. Respondent Vasquez and Respondent Galvan have subjected their Smog Check

Inspector Licenses to disciplinary action under section 9889.22, in that Respondent Vasquez and

Respondent Galvan willfully made false statements or entries with regard to a material matter on

the smog certificates of compliance issued for the vehicles at issue.

EIGHTH CAUSE FOR DISCIPLINE

(Violations of the Motor Vehicle Inspection Program)




Inspector Licenses to disciplinary action under Health and Safety Code section 44072.2,

subdivision (a), in that Respondent Vasquez and Respondent Galvan failed to comply with the 22


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following sections of the Health and Safety Code:

a. Section 44012: Respondent Vasquez and Respondent Galvan failed to perform

the tests of the emission control systems and devices on the vehicles at issue in accordance with

the procedures described by the Department.

b. Section 44032: Respondent Vasquez and Respondent Galvan failed to perform

tests of emission control devices and systems in accordance with Section 44012.

c. Section 44059: Respondent Vasquez and Respondent Galvan willfully made

false entries for smog certificates of compliance for the vehicles at issue by certifying that those

vehicles had been inspected as required when, in fact, they had not.

NINTH CAUSE FOR DISCIPLINE

(Fraud)



59. Respondent Vasquez’s Smog Check Inspector License and Respondent Galvan’s

Smog Check Inspector License are subject to disciplinary action under Health and Safety Code

section 44072.2, subdivision (d), in that Respondent Vasquez and Respondent Galvan committed

acts involving dishonesty, fraud and deceit when they issued smog certificates of compliance for

the vehicles at issue without performing bona fide inspections of the emission control devices and

systems on the vehicles.

TENTH CAUSE FOR DISCIPLINE

(Violations of Regulations Pursuant to the Motor Vehicle Inspection Programs)




Inspector Licenses to disciplinary action under Health and Safety Code section 44072.2,

subdivision (c), in that Respondent Vasquez and Respondent Galvan failed to comply with the

following sections of Title 16, California Code of Regulations:

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a. Section 3340.30, subdivision (a): Respondent Vasquez and Respondent

Galvan failed to inspect and test the vehicles at issue in accordance with Health and Safety Code

section 44012.

b. Section 3340.41, subdivision (c): Respondent Vasquez and Respondent Galvan

entered false information into the EIS for the smog certificates of compliance by entering vehicle

emission control information for a vehicle other than the vehicles being certified.

c. Section 3340.45: Respondent Vasquez and Respondent Galvan failed to

perform smog check inspections on the vehicles at issue as prescribed in the operative Smog

Check Manual.

OTHER MATTERS

62. Under Code section 9884.7, subdivision (c), the Director may invalidate temporarily

or permanently or refuse to validate, the registrations for all places of business operated in this

state by Respondent Gonzalez upon a finding that it has engaged in a course of repeated and

willful violations of the laws and regulations pertaining to an automotive repair dealer.

63. Pursuant to Health and Safety Code section 44072.8, if Smog Check, Test Only,

Station License Number TC 280412 issued to Respondent Gonzalez dba El Nene Test Only is

revoked or suspended, any additional license, issued under Chapter 5 of Part 5 of Division 26 of

the Health and Safety Code, in the name of said licensee may be likewise revoked or suspended

by the Director.

64. Under Health and Safety Code section 44072.8, if Smog Check Inspector License

Number EO 636877, issued to Respondent Vasquez, is revoked or suspended, any additional

license issued under Chapter 5 of Part 5 of Division 26 of the Health and Safety Code in the name

of said licensee may be likewise revoked or suspended by the Director.

65. Under Health and Safety Code section 44072.8, if Smog Check Inspector License

Number EO 641623, issued to Respondent Galvan, is revoked or suspended, any additional

license issued under Chapter 5 of Part 5 of Division 26 of the Health and Safety Code in the name

of said licensee may be likewise revoked or suspended by the Director.

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PRAYER

WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged,

and that following the hearing, the Director of Consumer Affairs issue a decision:

1. Revoking or suspending Automotive Repair Dealer Registration Number ARD

280412, issued to Octavio Gonzalez, dba El Nene Test Only;

2. Revoking or suspending any other automotive repair dealer registration issued to

Octavio Gonzalez;

3. Revoking or suspending Smog Check, Test Only, Station License Number TC

280412, issued to Octavio Gonzalez, dba El Nene Test Only;

4. Revoking or suspending any additional license issued under Chapter 5 of Part 5 of

Division 26 of the Health and Safety Code in the name of Octavio Gonzalez;

5. Revoking or suspending Smog Check Inspector License Number EO 636877, issued

to Daniel Vasquez;


Division 26 of the Health and Safety Code in the name of Daniel Vasquez;

7. Revoking or suspending Smog Check Inspector License Number EO 641623, issued

to Jessie Galvan;


Division 26 of the Health and Safety Code in the name of Jessie Galvan;

9. Ordering Octavio Gonzalez, Daniel Vasquez and Jessie Galvan to pay the Bureau of

Automotive Repair the reasonable costs of the investigation and enforcement of this case,

pursuant to Business and Professions Code section 125.3; and,

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10. Taking such other and further action as deemed necessary and proper.

DATED: _________________ PATRICK DORAIS Chief Bureau of Automotive RepairDepartment of Consumer AffairsState of California Complainant

LA2019503868 14130202.docx


ACCUSATION

February 19, 2020 SIGNATURE ON FILE

department of consumer affairs for the ......tc 280412 daniel vasquez 7318 lenox ave riverside, ca...

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